People v. Possing

Carpenter, J. Respondent is a saloon keeper. He [304] was convicted of keeping his saloon open on Sunday, August 10, 1902. He contends that a verdict should have been directed in his favor, because his bartender opened, the saloon without authority and contrary to his instructions. People v. Lundell, 136 Mich. 303 (99 N. W. 12), People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270), and People v. Welch, 71 Mich. 552 (39 N. W. 747, 1 L. R. A. 385), are authorities against this contention. It is also contended that there was a variance between, the information — which charged that respondent “did not then and there keep his saloon closed, but, on the contrary, he, the said Joseph Possing, did then and there keep his saloon open” — and the evidence, which shows, that the saloon was kept open, not by respondent personally, but by his bartender, his agent. This contention cannot prevail. The information is in the language of the statute (section 5395, 2 Comp. Laws), and is therefore sufficient. See Tiffany’s Criminal Law (4th Ed.), 463. The statute, as we have held (see People v. Lundell, supra), “imposes upon' the keeper of a bar or saloon the affirmative duty to see that it is closed, * * * and that the neglect of this duty is an offense.” The theory of the law as thus shown is that the respondent is held criminally responsible, not for the act of his agent in opening the saloon, but for his own neglect to keep it closed. The conviction is affirmed. The other Justices concurred.